The Null Set

by Forrest Wilder Published on Wednesday, September 28, 2011, at 10:45 CST

Texas Gov. Rick Perry may have infamously flirted with secession, but it’s another states’-rights idea that he’s married to: nullification. Nullification is the crackpot theory that states can reject federal laws.

“It’s an almost universally derided idea,” Sandy Levinson, a professor at the University of Texas School of Law, told me.

Though the concept dates to the 18th century, nullification was last bandied in the 1950s as a legal tool for resisting school desegregation. The success of the civil rights movement and a 1958 U.S. Supreme Court decision thankfully swept nullification into the dustbin of history. Or so we thought. The Tea Party and other far-right movements have kept the dream alive. Though nullification has been stripped—at least overtly—of its racist baggage, the nut of the thing has been reinvigorated in Rick Perry’s Texas.

It’s more than just rhetoric. In concrete ways, the Perry administration appears to have put nullification into practice, particularly in the areas of environmental law and regulation. I’m not talking about the state’s battery of largely frivolous lawsuits against the EPA or Perry’s whoopin’ and hollerin’ about states’ rights. That’s just politics. This is serious.

Take for example the shocking tale of how the Texas Commission on Environmental Quality deliberately low-balled radiation levels in drinking water, a story broken by investigative reporter Mark Greenblatt of Houston’s KHOU-TV. Instead of reporting to EPA the radiation measured in community drinking water samples, plus the margin of error, TCEQ simply subtracted the margin of error.

For example, if a water sample tested at 15 picocuries per liter—the federal limit—with a margin of error of plus or minus 5 picocuries, TCEQ subtracted five and reported a radiation level of 10. The explicit goal was to artificially keep utilities from exceeding the federal limit. No matter that this put people’s lives at risk. EPA emphatically told Texas to stop the practice.

As Greenblatt reports, then-TCEQ Chairwoman Kathleen Hartnett White, with the blessing of top state officials including Rick Perry, ordered the funny business continued, even though Texas risked losing more than $60 million in federal funding. When confronted on camera by Greenblatt, White, a Perry appointee, practically sticks her tongue out. “We did not believe the science of health effects justified EPA setting the standard where they did,” White said. “I have far more trust in the vigor of the science that TCEQ assesses, than I do EPA.”

Why then didn’t TCEQ sue over the regulation?

“Legal challenges, because of law and not because of science, are almost impossible to win,” she told Greenblatt.

This is some truly audacious hokum. The bottom line is that TCEQ couldn’t win on the merits so White and her cohort effectively “nullified” a regulation they didn’t agree with.

Fittingly, Hartnett is now a “scholar” at the right-wing Texas Public Policy Foundation, which recently launched a Center for Tenth Amendment Studies.Net proceeds from the sale of Perry’s book, Fed Up!, go to the center.

In the clean air arena, TCEQ has racked up a record of willful disregard for federal law and regulation in a few short years. For instance, the feds have ordered the Exide lead smelter in Frisco to reduce its emissions, an obvious hazard in a booming suburb. The state is in charge of coming up with a legally binding clean-up plan that brings the plant into compliance with the Clean Air Act. Despite repeated and specific instructions on the elements of the plan, TCEQ refused to follow the EPA’s stipulations. The result: In August, EPA rejected Texas’ plan, delaying the clean-up.

“The level of non-cooperation is so extensive, so fundamental that one can only conclude that the TCEQ intentionally sabotaged its own plan,” said Jim Schermbeck, director of Downwinders at Risk, an environmental group in Dallas-Fort Worth.

Those on the front lines see it all the time. Austin environmental attorney Ilan Levin points to a lawsuit challenging a coal-fired power plant near Austin. Levin, who’s involved in the suit; says the “flexible” air permit issued by Texas ignores a federal limit on particulate matter, the tiny soot-like particles that can damage people’s hearts and lungs. The coal plant owners are arguing in court that their Texas flex permit “voids” the federal limit. “That’s a very clear example of where the state of Texas doesn’t believe that federal limits apply and that the state can sort of disappear a federal requirement,” Levin said.

Rick Perry says he hates the federal government because it’s tyrannical. But all tyrants share a common feature: They think they’re above the law.

Forrest Wilder, a native of Wimberley, Texas, is associate editor of the Observer. Forrest specializes in environmental reporting and runs the “Forrest for the Trees” blog. Forrest has appeared on Democracy Now!, The Rachel Maddow Show and numerous NPR stations. His work has been mentioned by The New York Times, the Washington Post, the New Yorker, Time magazine and many other state and national publications. Other than filing voluminous open records requests, Forrest enjoys fishing, kayaking, gardening and beer-league softball. He holds a bachelor's degree in anthropology from the University of Texas at Austin.